High Court Judges Shortlisted and Weekend Round up

High Court Judges Shortlisted

The Judicial Service Commission has shortlisted 114 candidates for 26 positions of High Court Judge.  There were a total of 254 applicants. Out of the 114 shortlisted, 47 are women.  The majority of those shortlisted are currently serving as senior magistrates.  The interviews are scheduled for July.

Chief Justice and Morality.

The NCCK and Catholic Church have now come out clearly against the nomination of Dr Mutunga and Ms Barasa and Chief Justice and Deputy Justice respectively. The Church has raised what it terms as moral issues against the nominees. The Nation has an interesting article on “Why the Church is fearful of Mutunga.”

One of the more interesting issues the Church raised was that the fact that the JSC was wrong to give the Executive only one name to select. Thankfully, Maina Kiai demolishes this argument.

I have no problem with the Church and others voicing their concerns about the morality of particular candidates for office particularly judicial office but they must realise that Kenya is a nation of diversity and the content of morality is as varied as the wananchi.  While most Kenyans are God fearing, Christianity is not a state religion which everyone must follow.  What is more important, is whether the candidate have fidelity to the law and to what we have defined as our national values set out in Article 10 of the Constitution. 


Diplomatic Immunity and Privilege
The Privileges and immunities Act (Chapter 179 of the Laws of Kenya) codifies and applies the Vienna Convention on Diplomatic Relations 1961. Generally, diplomats are exempt from the criminal, civil and administrative jurisdiction of the host country. This exemption may be waived by their home country. Such immunity does not exempt the diplomat from the jurisdiction from the jurisdiction of his/her home country. While it is true that the Commissioner of Police has no jurisdiction to arrest the Nigerian High Commissioner on allegations of spousal abuse, the spouse may lodge the complaint in Nigeria where, subject to Nigerian law, the High Commissioner may be prosecuted.

Kenya has the discretion to declare any member of High Commissioner persona non grata at any time and there is no obligation to explain such a decision whereupon the Nigeria would recall the High Commissioner. Governments very rarely waives diplomatic immunity for their envoys even where the violations are egregious.

Right to Privacy and the World of Super injunctions
I think our Constitution is quite revolutionary in certain respects. Article 31 of the Constitution provides that every person has the right to privacy, which includes the right not to have (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communication infringed.

The right to privacy is important in this day and age of ubiquitous and intrusive technology. Given the scope of the right, the courts will have the responsibility of defining the contours of such a right. Does it apply to both state and private actions? To what extent does this right protect one’s nocturnal activities from the tabloids? Or is the “Spotted” article in the Star an unnecessary intrusion into one’s privacy. Isn’t the publishing of the Identity card numbers of applicant to public jobs an unnecessary invasion of privacy particularly given the opportunities for identity theft? I think these issues will be fertile areas of litigation.  I hope legislature intervenes with appropriate legislation.

The right to privacy and the extent of court intervention debate is now raging in the England, where the High Court has issued  Super injunctions not only prohibit the publication of the offending material but the fact that the court has actually issued such an injunction.

Right to Bail in Uganda
Fresh from landside win, President Museveni proposed a change of the law to deny bail to suspects charged with corruption, terrorism, treason and defilement in the first 180 days on remand. The proposed law would remove the discretionary powers of the judges to grant bail to suspects for certain crime categories. This proposal has received robust condemnation. Such laws are a cause for worry and are in my view an impediment to the integration of East Africa.

Approval of Mutunga, Barasa and Tobiko held up by Parliamentary Wrangles
The approval of the Chief Justice, Deputy Chief Justice and the Director of Public Prosecutions is now hostage to the wrangling of parties on the Departmental Committee on Justice and Legal Affairs. While the Speaker had ordered that the names be presented to the House last Thursday, the vetting of the nominees could not be done as the relevant Committee cannot sit as it is embroiled in a dispute.  An informal meeting of the House resolved to establish an ad hoc committee to conduct the vetting. Even that issue has not been settled. 

The Constitution and Times Lines 

The Commission for the Implementation of the Constitution has faulted the Minister for Finance for setting    as the date for presentation on 8th June.  According to the opinion issued by  the CIC, the  Article 221 requires that estimates of revenue and expenditure  be presented to the National Assembly at least two months before  presentation of the budget.  The purpose of this process is to ensure transparency and effective participation of the legislature in the budget process.   A good summary on the issues can be found here.

The view of the Commission is that no organ has the power to extend constitutional timelines.  I think that there must be a level or recognition that the country in going through a transition and some deadlines may be missed.  The case of a delayed budget is not one, in that is in legal terms, fatal.   If the money is not appropriated then of course, everything comes to a standstill.  On the other hand the Members of Parliament still have the opportunity to scrutinize the appropriation bills when they are presented for debate.